Chick v. Frey Coal Co.

ELLISON, J. This action is on an account for coal alleged to have been sold to defendants as partners. On trial the case was dismissed as to Erey and a judgment was had against Williams. ' It appears that Williams was connected with the Frey Coal Company as bookkeeper. There was some evidence tending to show that he had some interest in the business besides a salary, but be that as it may, there was abundant evidence, the tendency of which was to show that plaintiff did not regard the Erey Company as solvent and that he did so regard defendant Williams, and that before making a sale of the coal he had an understanding with Williams that he, Williams, was to pay for all the coal which was ordered, “Erey Coal Co., per Mark Williams.” That with this understanding plaintiff furnished the coal on such orders and charged it on his books in the words of the signature to the orders. If plaintiff’s theory of the facts was believed by the jury, the statute of frauds does not apply, since Williams’ promise was an original undertaking in which he made the debt his [236] own and not that of another. There being evidence, as before stated, to show that the original credit was extended to Williams, we have only to ascertain if the instructions properly covered the case presented. The rule is that the credit must have been given solely to Williams and not partly to him and partly to Erey, unless they had a joint interest in the purchase. Rottman v. Fix, 25 Mo. App. 571; Gill v. Reed, 55 Mo. App. 246; Pipe Co. v. Smith, 36 Mo. App. 608; Osborn v. Emery, 51 Mo. App. 408. The instruction for plaintiff was to the effect that the jury should find for him if they believed that before the coal was sold Williams agreed to pay for it and that plaintiff sold on the faith of such agreement. On the part of defendant the court instructed that the sale must have been upon the credit of Williams as an individual. Defendant did not ask an instruction in terms stating that the credit must have been extended to Williams alone, though the one just mentioned is a close approach to such direction. Several of defendants’ instructions were refused, some of which might have been allowed had the case not been sufficiently covered by those given. Others stated mere generalities, not proper at least as applied to the evidence in the case. We have not discovered error in the admission of evidence. It was shown that Erey was not financially responsible and that Williams was. This was brought out as a reason why plaintiff would not furnish the coal unless Williams would agree to pay for it. It seems to us that no ground has been stated by defendants which would justify us in disturbing the judgment and it is consequently affirmed. All concur.